That is perhaps the most assinine thing. Unless of course you enjoy spending your client's money for a mediators time, as well as the attorneys time.
What is the problem with trying to get the ball rolling so that when it does come to mediation, if it must, that instead of trying to bridge a huge chasm at $400 dollars an hour, its just the last 3 outs of the game?
I understand that in some cases, the sides are so far apart that only a mediator may be able to get one or both of the sides to make the compromises necessary to get a settlement done. However, it feels like an excuse they use to avoid having to do work. This way, instead of the attorney being responsible for a settlement, at least in the eyes of an attorney's client, they can place all the blame when buyers remorse comes on the fact that it was really brokered by the mediator and the client signed off on it. Have we as lawyers really gotten that bad? Or that lazy?
ADR was originally billed as the cost-effective way to end cases prior to trial. However, instead of doing that, they've become mini-trials, even when its mediation and not arbitration. Think I'm wrong? Take a look at the mediation brief that gets submitted. More often then not, its not just a little road map so that the arbitrator gets an idea of whats going on. Rather they are essentially trial briefs, previewing the case down to the last bit of evidence. Sure, it supposedly gets all the cards on the table. However, if you have an attorney who is not walking malpractice, then they should have already brought the bad cards to the client's attention.
ADR has its place. However, lawyers have become over-reliant on the mediators to accomplish the job. This is bad for both the attorney, and even more so, for the clients who have to pay the mediator's salary. And lets face it, they all don't look like Kate.
So next time, why not talk to your opposing party first. Whats the worst that can happen? You go the meidator later and drop a few grand of your client's money there. But at least you took a stab at being an attorney and not just someone who spends other people's money needlessly.